# Petition for Writ of Certiorari — Graham v. Mengel

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 1012

## Text

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No.

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

R. WILLIAM GRAHAM - PETITIONER
vs.

MARCIA J. MENGEL, CLERK OF THE SUPREME COURT
OF OHIO AND SECRETARY OF THE BOARD OF BAR
EXAMINERS; MEMBERS OF THE SUPREME COURT OF

OHIO; AND MEMBERS OF THE STATE OF OHIO BOARD

OF BAR EXAMINERS - RESPONDENTS

PETITION FOR WRIT OF CERTIORARI

FROM THE SUPREME COURT OF OHIO

PETITION FOR WRIT OF CERTIORARI

R. WILLIAM GRAHAM

15 W. DOROTHY LANE
SUITE 202

KETTERING, OH 45429
(513) 293-8481

Pro Se.

QUESTION PRESENTED

Whether the Supreme Court of Ohio erred in
finding it did not have jurisdiction over
Petitioner's attack of the State of Ohio's
failure to abide by its own administrat ve
rules of the July 1990 bar examination and
thus_determine the liability of the
individuals involved as well as provide
monetary, injunctive and declaratory relief,
in view of the facts that the Ohio
Constitution specifically empowers the Supreme
Court of Ohio with jurisdiction and that the
Supreme Court Court of Ohio has consistently
opposed that any other state or federal court

has jurisdiction to hear Petitioner's case?

Fe ne PPO EL A RE OE al wor ORES ARIES Ne HN.

PARTIES
R. William Graham,
Petitioner,
V.

Marcia J. Mengel, Clerk of The Supreme Court
of Ohio
30 East Broad Street, Columbus, Ohio 43215;

Members of the Supreme Court of Ohio,
Thomas J. Moyer,

A. William Sweeney,

Robert E. Holmes,

Andy Douglas,

J. Craig Wright,

Herbert R. Brown, and

Alice Robie Resnick;

30 East Broad Street, Columbus, Ohio 43215;

and

Members of the State of Ohio Board of Bar
Examiners,

Michael L. Gordon,

Indra K. Shah, -

Leslie W. Jacobs,

Phillip J. Campenella,

Keith McNamara,

James F. Deleone,

Larry H. James,

Kathleen M. Trafford,

Alan C. Travis,

Frederick Byers,

John A. Harris, III,

Theodore G. Gudorf,

30 East Broad Street, Columbus, Ohio 43215

Respondents.

.

~~

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TABLE OF CONTENTS
PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW ...++ - « « 2

JURISDICTION . . . «© «© «© » « «@ 2
CONSTITUTIONAL AND STATUTORY PROVISIONS
Svar 6 68 le tM! 8% 274% 08'S ES 3
STATEMENT OF THE CASE .... . 3
REASONS FOR GRANTING THE WRIT . 5

CONCLUSION .. «© «© «© © «© @ « 14
INDEX TO APPENDICES

Appendix A Order of the Supreme Court of
Ohio (1993)

Appendix B Order of the Supreme Court of
Ohio (1993)

Appendix C Order of the Supreme Court of
The United States (1993)

ee Rat te ett aN ls ANE

Appendix D Opinion of the Court of Appeals
For the Sixth Circuit not reported (6th Cir.
1993)

Appendix E Opinion of the District Court
for the Southern District of Ohio, Western
Division

Appendix F Title 28 U.S.C. § 1257

Appendix G Amendment XIV to United States
Constitution

Appendix H Title 28 U.S.C. § 1331, 1343 (a)
Appendix I Ohio Consitution IV §(B)(1)(9)

and (2)(a)(iii)
ii

~~

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TE AY SMR Ree

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TABLE OF AUTHORITIES CITED

CASES

Baird v. Hosmer, 48 Ohio App. 2d 51, 355 N.E.
2d 525, 2 Ohio Op. 3d 37 (1975), 46 Ohio St.
2d 273, 347 N.E. 2d 533, 75 Ohio Op. 2d 323
(1976) «© e se eve eoveesc nee se ee ee eee

Evans v. Celeste, 718 F. Supp 641 (1989),
716 F. Supp. 1067 (1989) . . «© «© © © e oe oe BY

Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441,
2 beBGe 146 (E908) wc we eo eect wwe le eee

Forrester v. White, 484 U.S. 219, S.Ct.
(ifeee es 06 e& #6 8 © ew 6 lS SS lhl 7 ee

Reagan v. Farmers' Loan & Trust Co., 154 U.S.
362, 14 §.Ct. 1047, 38 L. Ed. 1014... .413

Reynolds v. State, 14 Ohio St. 3rd 68, 471
N.E. 2d 776, 14 Ohio B. Rep. 506... .. 13

Schware v. Board of Bar Examiner's of The
State of New Mexico, 353 U.S. 232, 1 L. Ed.
pa fee, CF Be Gee Fou (B0erT) «ec ese eee §

STATUTES

United States Code

Title 42, Gection i983 ..-.«..<«-e«-e-evwvt wed
Title 42, Section 1985 ...«+«-e-e-e-ree 3
Title 26, Gection 12937 ~.-«e«reree eve 6
Title 26, Section-i331 . «© «- sere e ee S

Title 28, Gection 1363(8) « «© e« e es eered

iii

—————_-

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No.

IN THE SUPREME COURT
OF THE

UNITED STATES OF AMERICA

October Term, 1993

R. William Graham, Petitioner
Vs.

Marcia J. Mengel, et al., Respondents

PETITION FOR WRIT OF CERTIORARI FROM THE :
SUPREME COURT OF OHIO 4

Petitioner, R. William Graham,
respectfully prays that a writ of certiorari
issue to review the judgment and order of the
Supreme Court of Ohio that Petitioner did not
raise a constitutional claim and that it

lacked jurisdiction to entertain Petitioner's

complaint.

OPINIONS BELOW

The Orders of the Supreme Court of Ohio
appear in Appendices A and B to this Petition.
The Order of the Supreme Court of the United
States appears in Appendix C to this Petition.
The opinion of the Court of Appeals for the
Sixth Circuit was not recommended for
publication and appears in Appendix D to this
Petition. The opinion of the District Court

for the Southern District of Ohio Western

Division, R. William Graham, et al. v. Marcia

J. Mengel, (6th Cir. 1992) (not published) and

appears in Appendix E to this Petition.

JURISDICTION

The Supreme Court of Ohio's Opinion in
this matter was filed on July 14, 1993. This
Court's jurisdiction is invoked under Title
28, U.S.C. § 1257 and is set forth in Appendix

F.

iii eal ieeeaiaemnt

PE a ORE eae
, nD eae See

3

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
Fourteenth Amendment of the United States
Constitution is set forth in Appendix G, Title
28 U.S.C. § 1331, 1343 (a) set forth in

Appendix H and O Const IV § 2 in Appendix 1.

STATEMENT OF THE CASE

This action originated with Petitioner
filing complaints against the Clerk of the
Ohio Supreme Court, Justices of the Ohio
Supreme Court and the members of the Ohio
Board of Bar Examiners in their individual and
official capacities in the District Court, in
the Supreme Court of Ohio and in the Court of
Claims of Ohio for injunctive, declaratory and
monetary relief for the violation and
deprivation of Petitioner's state rights and
constitutional rights as guaranteed by the
Fourteenth Amendment of the United States —
Constitution, Title 42, Sections 1983 and

1985. On February 19, 1992 judgment was

4
returned against Petitioner in the Southern
District of Ohio Western Division, dismissing
Petitioner's complaint for want of
jurisdiction due to Petitioner failure to show
that no adequate state forum exists in which
to hear his claim.
On March 20, 1992, Petitioner filed a

Notice of Appeal. Before the Court of Appeals

for the Sixth Circuit, Petitioner submitted

briefs to support that the District Court had

jurisdiction to hear Petitioners' complaint.

On April 15, 1992, the Supreme Court of

——--

Ohio, IN MANDAMUS ENTRY, denied Petitioner's
request for damages and injunctive relief and
appointment of noninterested judges, but
retained jurisdiction for declaratory
purposes. On February 3, 1993, without
Stating its reasoning, the Court of Appeals
for the Sixth Circuit affirmed the District
Court's judgment.

On May 3, 1993, Petitioner filed a

Petition for Writ of Certiorari to the United

os

a a ne is daa aaron

5
States Supreme Court from the Court of Appeals
for the Sixth Circuit. On June 21, 1993, the
Supreme Court denied Petitioner's Petition for
Writ of Certiorari.
On July 14, 1993, without addressing the

merits, the Supreme Court of Ohio, sua sponte,

dismissed Petitioner's complaint for want of
jurisdiction. Petitioner's case is presently
pending before the Court of Claims of Ohio
where the Respondents argue that the Supreme
Court of Ohio's dismissal equates to res

judicata or collateral estoppel thereby

precluding the judge in that case from hearing
Petitioner's claim. Due to time constraints
in which to file, Petitioner has submitted

this Petition For Writ of Certiorari.

REASONS FOR GRANTING WRIT

Certiorari should be granted for two
reasons: The Petition presents an issue

resolved implicitly by this Court; and, by

6
implication, the Opinion the Supreme Court of
Ohio below conflicts with the previous
decision of this Court.

This Court has held that a State cannot
exclude a person from the practice of law or
from any other occupation in a manner or for
reasons that contravene the due process clause

of the Fourteenth Amendment. Schware v. Board

of Bar Examiners of The State of New Mexico.

Respondents have abused the court systems
of this country in a tortuous manner to escape
litigation of their actions and it is

inexcusable and should not be tolerated.

Respondents avoided review by the federal

district court by claiming Petitioner had an

eth thie

adequate state forum to pursue his claims.
Yet, when Petitioner appeared in the Supreme
Court of Ohio, the Supreme Court of Ohio
ordered that it did not have jurisdiction to
hear Petitioner's claim. The apparent reason
for the Supreme Court of Ohio's refusal to

hear Petitioner's case or address the merits

ir erenreeeeecieeenleaemeaeainieaiaal

7
of the case is simply for fear that the facts
will plainly and undeniably expose the
Respondents' liability and violation of
Petitioner's state rights and federal rights
as guaranteed by the Fourteenth Amendment of
the United States Constitution.

The facts are that the Ohio Board of Bar
Examiners and Clerk (administrator of the
exam) failed to perform their duties in
administering instructions to an examiner
and/or the examiner failed to follow the
instruction of the July 1990 Ohio bar exam
which resulted in the examiner assigning
passing scores to only 1.4% of 694 examinees
he graded which in turn resulted in the
preclusion of passing over one hundred and
fifty examinees, the damage of which is
unknown but estimated to exceed several
million dollars.

Presently, the Respondents argue before
the Court of Claims of Ohio that the Supreme

Court Ohio's dismissal for want of

8
jurisdiction is a final judgment which estops
Petitioner from bringing suit in that forum.
Petitioner argues against that point in
the Court of Claims on the basis that res

judicata and collateral estoppel only apply to

decisions “on the merits."

It is now clear that Respondents do not
intend to afford Petitioner any state forum in
which to have his claim heard. Petitioner,
therefore turns to this Court as a last resort
and requests that a determination of
Petitioner's claim before this Court be made
and writ be granted.

Petitioner claims that the Supreme Court

of Ohio violated his state and federal right

protected by the Fourteenth Amendment by the

EE

State of Ohio Clerk and Board of Bar
Examiners' failure to properly administer the
July 1990 Ohio Bar exam and have failed to
adequately redress such violation, which, in
turn, excluded Petitioner from the general

practice of law in Ohio for reasons which

ea

9
contravene his due process of the Fourteenth
Amendment. Petitioner asserts that there is
more at stake here than his right to practice
law. There is an overriding concern that
those who govern the admission and the
practice of law are not left with an arbitrary
or absolute power to determine the practice in
a manner which contravene's the rights
guaranteed by the Fourteenth Amendment of the
United States Constitution. Petitioner
submits that the Respondents are doing just
that.

Whether the the practice of law is a
right, privilege or other interest is of
secondary concern. Set aside, for a moment,
that there exists any formal system at all
which determines who can or can't practice
law, medicine, accounting or any other
profession for that matter. In such a system,
Petitioner, like all others in the world,
would be subject only to the laws of Nature
and succeed or fail in his chosen profession
only on that basis. Why then would Petitioner
or any other part with his freedom to do so or
subject himself to dominion and control of any

other power. The obvious answer is that

ag

10
though Petitioner may have such right or
interest in the state of Nature, the practice
of the profession as a whole becomes very
uncertain and indeed the judicial system would
likewise be troubled with the same thereby
exposing anyone in the system to the invasion
Or corruption of others. In such a system, it
would be every man or woman for himself or
herself, the greater part of whom are no
strict observers of equity and justice. Thus,
the enjoyment which any of us would have with
our livelihood, rights, property, etc. would
be very unsafe and insecure.

In order to quit these conditions, however
free they may be in the state of Nature,
Petitioner, like others, is willing to join a
system with others who already united for
mutual preservation and integrity of the
whole. With this said, there wants an
established, settled, known set of rules and
procedures, received and allowed by common
consent to be the standard of right and wrong
within the profession, and a common measure to
decide all controversies between them. While
the laws of Nature apply evenly to all, men
and women are biased by their interest, the
case at hand being no exception, and are not
apt to allow the laws or rules to be applied
to them in the particular situation as the

case may be.

11
This case sets forth a scenario wherein
the Supreme Court of Ohio's members and

appointed officers and agents, for reasons of
reckless disregard for their defined
administrative procedures, or worse, pressure

from the local bar or political heads of State

or an attempt to merely cover up their own
administered scheme or other reason the

particulars unknown, is attempting to exercise

arbitrary power and governing without regard
to settled rules which the Supreme Court of
Ohio set forth and refuse to subject
themselves to the rules which the rest of us

have chosen to so do. Here the members of the

Supreme Court of Ohio and its Board of Bar
Examiners and Clerk through which it acts can
not be supposed to have any more absolute

arbitrary power over Petitioner or others, and

put this or any other court in a position of
executing such individuals unlimited will
arbitrarily upon him or another. This would
be placing Petitioner and others in a worse
condition than the state of Nature, wherein
all had the liberty to defend their rights,
liberties, and property against the injuries
of others. For Petitioner or any other to
submit to such a condition would in effect
disarm him and make him prey of those he and
others consented to have govern. This would
be absurd. Petitioner respectfully submits

12
that it was in part this reason that this
Court was established, not only as a check and
balance to the other branches of government,
but also to watch its own judicial branch and
its members to see that wrongs do not go
unredressed and place all subject to the same
rules.

The Supreme Court of Ohio, its Clerk and
Board of Bar Examiners complained of herein
were entrusted witi: the condition that power,
absolute or otherwise, should never be

a a ne

arbitrarily applied.

For all power given with trust for
attaining an end being limited by that
end, whenever that end is manifestly
neglected or opposed, the trust must
necessarily be forfeited, and the power
devolve into the hands of those that gave
it, who may place it anew where they shall
think best for their safety and security.
Locke.

Therefore, it must be that Petitioner

retain supreme power to save himself from the |
attempts and designs of the Supreme Court of
Ohio, its Clerk and Board of Bar Examiners to
deprive him of his right to redress the wrongs
committed by the Supreme Court of Ohio and its
officers and his interest to practice general
law in the State of Ohio.

Petitioner's claim against the State of
Ohio is a viable cause of action in that the
State and its officers engaged in the function
of administering the July 1990 bar exam for

13
determining admission to practice law in Ohio.
The State and its officers had defined
administrative procedures to be followed to
insure the validity of the exam. The State
and its officers recklessly and negligently
failed to follow said procedures. The State

and its officers’ failure resulted in great
damage. The State is excluding Petitioner from
the general practice of law in a manner which
contravenes his due process guaranteed by the
Fourteenth Amendment. Such negligent action
does present a cause of action to which no
state immunity applies. Reynolds v. State, 14
Ohio St. 3rd 68, 471 N.E. 2d 776, 14 Ohio B.
Rep. 506; Evans v. Celeste, 718 F. Supp 641
(1989), 716 F. Supp. 1047 (1989); Baird v.
Hosmer, 48 Ohio App. 2d 51, 355 N.E. 2d 525, 2
Ohio Op. 3d 37 (1975), 46 Ohio St. 2d 273, 347
N.E. 2d 533, 75 Ohio Op. 2d 323 (1976). Such
action further violated Petitioner's

constitutional rights as set forth in the

$$ $$ —$__——_—_—_<

complaint, which is additionally actionable
Evans v. Celeste, 718 F. Supp 641 (1989), 716
F. Supp. 1047 (1989). Reagan v. Farmers' Loan
& Trust Co., 154 U.S. 362, 14 S.Ct. 1047, 38
L. Ed. 1014. Ex Parte Young, 209 U.S. 123, 28
S

Vv

.Ct. 441, 52 L.Ed. 714 (1908). In Forrester
. White, 484 U.S. 219 (1988).
Finally, Peitioner's complaint is within

the Supreme Court of Ohio's jurisdiction

because it is a matter involving

14

an issue arising under the Ohio and United
States Constitution and a matter related to

the practice of law. O Const IV § 2
specifically gives the Supreme Court of Ohio
jurisdiction over such issues raised in the
Petitioner's complaint.

The Supreme Court should grant certiorari
here to explicitly rule that the Supreme Court
of Ohio erroneously dismissed Petitioner's
Claim for want of jurisdiction and that
Petitioner's claim does rise to the level
which violates his state rights and federal
due process rights as guaranteed by the
Fourteenth Amendment.

CONCLUSION

For the reasons set forth above, a writ
of certiorari should issue to review the
judgment of the Supreme Court of Ohio in this
matter.

DATED: October 12, 1993

Res tfully submit
R. William Graha

Pro se

APPENDIX A

THE SUPREME COURT OF OHIO
1993 Term

To wit: July 14, 1992

R. William Graham, : Case No. 92-566
Plaintiff, :

Vv. : ENTRY

Marcia Mengel, Clerk
of the Supreme Court
of Ohio, etc., et al.

This cause originated in this Court on
the filing of a complaint for damages,
declaratory and injunctive relief and was
considered in a manner prescribed by law.

IT IS ORDERED by the Court, sua sponte,
that this cause be, and hereby is, dismissed
for want of jurisdiction.

THOMAS J. MOYER
Chief Justice

ee, Se ee ee

APPENDIX B

THE SUPREME COURT OF OHIO

1992 Term

To wit: April, 15, 1992

R. William Graham, Case No. 92-566

Plaintiff, ;
Vv. :
: IN MANDAMUS a
Marcia Mengel et al., :
Defendants. : ENTRY

This cause originated in this Court on
the filing of a complaint for damages,
declaratory and injunctive relief. Upon
consideration of plaintiff's requests for
appointment of noninterested judges,

IT IS ORDERED by the Court that said
request for appointment of noninterested
judges be, and the same is hereby denied.

THOMAS J. MOYER
Chief Justice

FO NS ie ern ae

APPENDIX C

SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK ,
WASHINGTON, D.C. 20543

June 21, 1993

Mr. R. William Graham
15 W. Dorothy Lane
Suite 202

Kettering, OH 45429

RE: R. William Graham
v. Marcia J. Mengel, Clerk,
Supreme Court of Ohio and
Secretary, Ohio Board of Bar
Examiners, et al.
Case No. 92-1778
Dear Mr. Graham:

The Court today entered the following
order in the above-entitled case:

The petition for a writ of certiorari is
denied.

Very truly yours,

William K. Suter, Clerk

APPENDIX D

No. 92-3283
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

R. WILLIAM GRAHAM,
Plaintiff-Appellant,

MICHAEL DEFFET;
DANIEL D. CAREY,

Plaintiffs,

Vv. ORDER
MARCIA J. MENGAL, Clerk of
Supreme Court of Ohio and
Secretary of the Ohio

Board of Examiners,

et al., )

me em ee ee ee ee ee ee ee ee eee ee ee ee

Defendants-Appellees. )

BEFORE: BOGGS and SILER, Circuit Judges, and

JOINER, Senior District Judge! .

R. William Graham, a pro se Ohio

resident, appeals a district court judgment

1 The Honorable Charles W. Joiner, Senior
U.S. District Judge for the Eastern District
of Michigan, sitting by designation.

dismissing his civil rights complaint filed
under 42 U.S.C. §§ 1983 and 1985. The case
has been referred to a panel of the pursuant
to Rule 9(a), Rules of the Sixth Circuit.

Upon examination, this panel unanimously
agrees that oral argument is not needed. Fed.
R. App. P. 34(a).

Seeking injunctive, declaratory, and
monetary relief, Graham and tow other
individuals sued the clerk of the Ohio Supreme
Court, the Justices of the Ohio Supreme Court
and the members of the Ohio Board of Bar
Examiners in their individual and official
Capacities for allegedly violating Plaintiffs'
due process and equal protection rights under
the Fourteenth Amendment. Plaintiffs, who
unsuccessfully sat for the July 1990 Ohio bar
examination, claimed that the manner in which
the examination was graded was arbitrary and
Capricious, resulting in the denial of their
constitutional rights.

The district court granted defendants'

motion for summary judgment as to Plaintiffs'

claims of procedural due process and equal
protection; however, it tried the issue as to
whether Plaintiffs were denied substantive due
process. After trial, the district court
concluded that it lacked subject matter
jurisdiction over the dispute and dismissed
the case.

In his timely appeal, Graham essentially
argues that the district court erred by
concluding that it lacked subject matter
jurisdiction. Graham is the only Plaintiff to
file a timely appeal.

Upon de novo review, we conclude that the
district court was without jurisdiction to
entertain Graham's complaint. See D.C. Court
of Appeals V. Feldman, 460 U.S. 462, 485-86
(1983).

Accordingly, the judgment of the district
court is hereby affirmed. Rule 9(b)(3), Rules

of the Sixth Circuit.

APPENDIX E

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

R. WILLIAM GRAHAM, et al., :

Plaintiffs, :

v. :Case No. C3-90-413
MARCIA J. MENGEL, et al., :Judge Rice

Defendants. :

FINDINGS OF FACT AND CONCLUSIONS OF LAW;
DECISION AND ENTRY OVERRULING DEFENDANTS'
MOTION TO DISMISS FOR MOOTNESS THE CLAIMS
OF DEFFET AND CAREY (DOC. #34); DECISION
AND ENTRY SUSTAINING DEFENDANTS' MOTION
TO DISMISS (DOC.#38); JUDGMENT TO BE
ENTERED IN FAVOR OF DEFENDANTS AND
AGAINST PLAINTIFFS, DISMISSING
PLAINTIFFS' SECOND AMENDED COMPLAINT
(DOC. #24) FOR WANT OF SUBJECT MATTER
JURISDICTION; TERMINATION ENTRY

The Plaintiffs, three examinees who
successfully sat for the July, 1990 Ohio bar

examination was graded arbitrary and

Capricious and denied them substantive due

he Tip a

peer ere

process, i.e. deprivation of a
liberty/property interest, as guaranteed by
the Fourteenth Amendment to the United States

Constitution. 2

In particular, Plaintiffs
claims centered on the scores assigned to
examinees by one member of the Ohio Board of
Bar Examiners, Leslie Jacobs. Plaintiffs
sought declaratory and injunctive relief. On

February 19 and 21, 1991, this case was tried

to thee Court, without the intervention of a

jury. Pursuant to Rule 52 and based upon the ;
evidence adduced at the hearing of this matter

and the arguments contained in parties post-

trial submissions, the Court now states its

Finding of Fact and its Conclusions of Law.

12 plaintiffs also alleged that they
were denied procedural due process and their
right to equal protection of the laws.
However, prior to the trial of this case, the
Court sustained judgment (Doc. #13). See
Docs. ##29 and 30. The Court sustained
Defendants' motion with respect to Plaintiffs'
Claims of deprivation of procedural due
process and denial of their right to equal
protection of the laws. Consequently, this
case went to trial only on Plaintiffs' claims
that they were denied substantive due process.
i.e. deprivation of a liberty/property
interest.

4

I. FINDINGS OF FACT.

l. The Plaintiffs, R. William Graham
("Graham"), Michael E. Deffet ("Deffet") and
Daniel D. Carey ("Carey"), failed the July,
1990, Ohio bar examination. As a result of
failing the July, 1990, bar examination,

Plaintiffs were denied admission to practice

law in the state of Ohio. 24

2. The Defendants are the Clerk of the Ohio

Supreme Court, the Chief Justice and Justices
of the Ohio Supreme Court and the members of

the Ohio Board of Bar Examiners ("Board").

The Supreme Court created the Board and

24 Deffet and Carey passed the passed
the February, 1991, Ohio bar examination and
were admitted to the practice of law in Ohio
on May 20, 1991. Consequently, Defendants
have filed a motion to dismiss the claims of
Deffet and Carey, arguing that their admission
to the bar renders their claims moot. See
Doc. #34. Without question, their admission
to the bar moots certain of remedies sought by
Deffet and Carey. For instance, their request
that the Court order them admitted to the bar
is mooted. Nevertheless, the Court overrules
Defendants’ motion to dismiss (Doc. #34) in
which they argue that all claims of Deffet and
Carey are moot. The remedies sought by the
two are more extensive than merely seeking to
have the Court order their admission to the
bar. For instance, Deffet and Carey argue in
their memorandum in opposition (Doc. #37) to
the motion to dismiss, that if this Court
finds in their favor, it can order the records
regarding their results on the July, 1990, bar
examination sealed. Although they did not
specifically request that relief in their
second amended complaint, it could be an
appropriate form of equitable relief under
their prayer for “such other equitable relief
to which they may be entitled." Therefore,
this case remains a live controversy as to
Deffet and Carey. It certainly remains a live
controversy as to the Plaintiff Graham who has
not retaken the Ohio bar examination.

delegated to it the task of assessing, by

conducting the Ohio bar examination, the
minimum competency of applicants to practice

law in Ohio.?°

During July, 1990, there were i
12 members of the Board. The clerk of the

Supreme Court serves as the Secretary of the

board.

3. The Ohio bar examination is conducted over

a three day period. The first and third days

of the examination consist of 24 essay

questions prepared by the members of the

Board. Each of the 12 members of the Board
prepares and grades two essay questions which
are given during a one hour period. Each set
of two essays is answered in one essay
booklet. The second day of the examination is

devoted to the Multistate Bar Examination

35

The Ohio Constitution provides that the
Ohio Supreme Court shall have original
jurisdiction over admission to to the practice
of law. Art. IV, S 2(B) (1) (9g).

("MBE"). 46 In. arder tao pass the Unio bar
examination, an applicant must receive a score
of 75% which, in July, 1990, was 270 out of a

possible 360 points.’

4. In July, 1990, there were two methods
by which an applicant could achieve this
passing score. Under the first method, an
Applicant could secure a passing score through
the presumptive pass rule. Under this rule,
an applicant achieves a passing score if he or
she is the upper 60 percentile on the MBE and
he or she receives 14 points on each of two

randomly selected essay booklets.°8 the

second mode of achieving a passing score is

ee

46

The MBE is an objective six hour test
consisting of 200 multiple choice questions.
The MBE is prepared by the National Conference
of Bar Examiners in conjunction with the
Amer igan College Testing Program.

Each of the 24 essay questions is
worth a maximum of 10 points and the MBE is
worth a maximum of 120 points.

68Por purposes of this random selection,
members of the Board are paired. Thus, each
set of two bar examiners grades the same one-
sixth of the examinees.

for applicants who do not achieve a passing
score under the presumptive pass rule, i.e.,
those who scored in the lower 40 percentile of
the MBE, did not score at least 14 on their
two randomly selected essay books. To achieve
a passing score, under the second mode, the
total of the scores of all of an applicant's
essay questions, together with his or her
weighted MBE score, must equal or exceed 270
points.

5S. Twelve hundred and nine examinees
took the July, 1990, Ohio bar examination. Of
those who took the bar examination, 419 or
35.1% were unsuccessful. As a result, the
July, 1990, Ohio bar examination had one of
the lowest pass rates in recent history.

6. The Plaintiffs all scored in the
upper 60 percentile of the MBE but failed to
achieve passing scores on bar examination,
because none received at least 14 points on
his two randomly selected essay books and
because the total of each Plaintiff's scores

on all his essay questions and his weighted

MBE scores did not equal or exceed 270 points.
For each Plaintiff, one of two randomly

selected essay books contained his answers to
the questions of one particular member of the

Board, Leslie Jacobs ("Jacobs").

7. Jacobs was easily the most stringent |
grader among the members of the Board. For |
instance, the other eleven members of the
Board assigned an average score of slightly
more than 15 points (15.134), out of a
possible 20 points, to each essay booklet.
Jacobs assigned and average score of just in
excess of 10 points (10.043) per exam booklet.
Additionally, approximately 720 applicants
scored in the top 60 percentile of the MBE.
Five hundred and twenty-eight of those passed
under the presumptive pass rule. Jacobs and
the examiner with whom he was paired graded
the essay booklets, containing answers to the
questions they gave, of 120 of those who
scored in the top 60 percentile. Of those 120
examinees, only 13 passed under the

presumptive pass rule, i.e., received a grade

of 13 or more on each of the two sets of essay
questions.

Finally, of the 694 examinees whose essay
questions Jacobs graded, only 10 received 15
or more points.

8. Jacobs testified during the trial of
this case and explained the manner in which he
graded questions. Jacobs started with a model
answer which he had drafted. Based upon the
model answer, he then scored each question
between zero and ten, with zero being given
for a nonexistent answer and ten being given
to the ideal. Jacobs testified that a manner
of factors went the grade he assigned for each
question. 7? First, he considered whether the
examinee recognized the field of law which was

being examined. Second, he considered whether

the examinee has recognized the Hornbook legal
principles which applied to fact pattern set |
forth in the question. Jacobs' third |

criterion was whether the examinee was able to

79 jacobs testified that each factor was |
equal importance. |

analyze the facts in light of the legal
principles, in other words to determine to
what extent those principles applied or did
not apply to the particular facts. 810
Fourth, he considered the manner in which an
answer was written, including grammar and
spelling. Fifth, he considered whether the
answer contained any affirmatively incorrect

911

statements. Finally, he considered

whether anything was said which reflected an
error regarding the Code of Professional
Responsibility and the Code of Judicial
Conduct. Jacobs testified that to the best of
his ability he applied these criteria

consistently to all questions.

8107, assessing the ability of an
examinee to analyze the facts and to apply
legal principles, Jacobs testified that he was
particularly interested in whether the answer
followed a logical sequence. In other words,
Jacobs considered whether the conclusion in a
particular answer was consistent with the
discussion.

911 jacobs deducted points for incorrect
statements.

9. When asked to explain why he thought
that the grades which he assigned were so much
lower than those assigned by his fellow bar
examiners, Jacobs explained that he deducted
for incorrect statements, that one of his
questions had a clear need to apply a
principle of the Code of Judicial Conduct and
that he viewed it very severely when an answer

misapplied it, and that he considered not just

which answers were written.
10. Based upon his testimony, the court finds

that Jacobs exercised professional judgment in

the content of answers but also the way in
|

the manner in which he graded the July, 1990,
bar examination.
11. Even though he exercised professional
judgment in grading the July, 1990, bar
examination, Jacobs did not grade the exam in
conformity with any standards set by the Ohio
Supreme Court.

Indeed, Jacobs testified that there was
no attempt to by the Ohio Supreme Court to

have the 12 examiners apply standard criteria

eee

when grading the exam. Jacobs testified that
the exam was graded by 12 individuals, each
exercising his or her own best, independent
professional judgment. Additionally, he
testified that he did not understand that a
score of 7.5 on an answer corresponded with

minimum competency.

12. The decision to deny Plaintiffs admission
to the bar, based upon the scores which they

received on the bar examination, was made in a
judicial proceeding within the meaning of D.C.

Court of Appeals v. Feldman, 460 U.S. 462

(1983).

II OPINION.

After the trial of this case, Defendants
filed a motion to dismiss (DOC. #38) which

raises the question of this Court's subject

matter jurisdiction to entertain the present

Seas oe ae

case. 1012

It is axiomatic that subject matter
jurisdiction goes to the very power of a court
to hear a case. Subject matter jurisdiction
cannot be waived and can be raised at any
time, even on appeal. 5A Wright & Miller,

Federal Practice and Procedure, § 1350.

Indeed, a court, whether trial or appellate,
has the obligation to satisfy itself of its
subject matter jurisdiction; therefore, a

court may raise the question sua sponte. Id.

See also, In re Wolverine Radio Co., 930 F.2d

1132, 1137 (6th Cir. 1991) ("“{FJederal courts
are courts are courts of limited jurisdiction

and have a continuing obligation to examine

their subject matter jurisdiction throughout

the pendency of every matter before them.").

Accordingly, before addressing the merits of

1012 phis motion to dismiss (DOC. #38) is
denominated Defendants' Supplemental
Memorandum. However, it raises questions
relating to this court subject matter
jurisdiction over this case; therfore, the
Court treats the supplemental memorandum as
one to dismiss for want of subject matter
jurisdiction.

Plaintiffs' claims, the Court turns to the
issues raised by Defendants' motion to dismiss
for want of subject matter jurisdiction (DOC.

#38).

In their motion to dismiss, Defendants
argue that the decisions of the Ohio Supreme
Court to deny Plaintiffs admission to the
practice of law, because of their failure to
pass the July, 1990, bar examination, were
judicial determinations. As such, Defendants

contend that under D.C. Court of Appeals v.

Feldman, 460 U.S. 462 (1983), judicial review
by a federal court of those judicial decisions
by the Ohio Supreme Court, pursuant to 28
U.S.C. § 1257,2113 Consequently, the argument
continues, this Court is without subject
matter jurisdiction to hear this case. Thus,

this Court now turns to an analysis of the

Feldman doctrine.

13 Section 1257 provides, in pertinent
part: (a) Final judgments or decrees rendered
by the highest court of a State in which a
decision-could be had, may be reviewed by the
Supreme Court...

a a

In Feldman, the Supreme Court addressed

the identical question raised by Defendants’
motion to dismiss (DOC. #38), namely, to what
extent does a district court have subject
matter jurisdiction to hear a challenge to a
decision by a state court denying a person the
right to practice law. Feldman involved two
suits brought in the United States District
Court for the District of Columbia by two
applicants to the District of Columbia bar,
Feldman and Hickey, who had not been allowed
to sit for the District of Columbia bar
examination because they had not graduated
from—-law schools approved by the American Bar
Association ("ABA") ,2214 Feldman and Hickey
claimed that the District of Columbia Court of
Appeals had acted arbitrarily, capriciously,

unreasonably and discriminatorily in refusing

1214phe District of Columbia Court of
Appeals had a rule which required applicants
for the District of Columbia bar examination
to be graduates of a law school approved by
the ABA. Feldman did not attend law school;
Hickey had graduated from a law school which
was not approved by the ABA.

to waive the requirement that one graduate
from an ABA approved law school.
Additionally, they asserted that the rule was
unconstitutional because it created an
irrebuttable presumption that the rule was
unconstitutional because it created an
irrebuttable presumption that only graduates
of law schools accredited by the ABA are fit
to practice law, because it discriminated
against those who have obtained equivalent
legal training and because it impermissibly

delegated to the ABA the authority of the

District of Columbia Court of Appeals to

regulate the bar.

The question which the Supreme Court

faced in Feldman was whether the decisions by

the District of Columbia Court of Appeals not
to grant waivers to Feldman and Hickey were
judicial decisions made in judicial

proceedings, such as to deny a federal

tribunal, inferior to the United States

Supreme Court subject matter jurisdiction to

ee

hear their claims.2315 The Supreme Court
concluded that the decisions were so made, :
stating:
Admittedly, the proceedings in both
Feldman's case and Hickey's case did not a
assume the form commonly associated with
judicial proceedings. As we said in In re
Summers, [325 U.S. 561, 567 (1945)], however,
"Ttyhe form of the proceeding is not
significant. It is the nature and effect that
is controlling.” Id. at 567.
460 U.S. at 482. In determining whether a
proceeding is judicial as opposes to
legislative, administrative or ministerial,
the Supreme Court said in Feldman that a
judicial inquiry investigates facts as they i
exist and enforces liabilities based upon the
law as it then stands. Id. at 477. This was
the situation that existed within Feldman and
in the case at bar. A legislative proceeding,

on the other hand, unlike the situation in

both Feldman and the instant case, looks to

1315 phe District Columbia Court of
Appeals denied the waivers in per curiam
orders which were entered in response to
petitions addressed to it by counsel for
Feldman and Hickey.

ee

the future by making new rules (new law) to be
applied. Id
Having concluded that the proceedings

were judicial in nature, the Feldman Court

noted that there are two types of claims which
a frustrated bar applicant could assert. The

Supreme Court said:

"the United States District Court, in
denying [the Plaintiff] relief, declared
that there is a subtle but fundamental
distinction between the two types of
Claims which a frustrated bar applicant
might bring to federal court: The first
is a constitutional challenge to the
state's general rules and regulations
governing admission; the second is a
Claim, based on constitutional or other
grounds, that the state has unlawfully
denied a particular applicant admission.
The Court held that while federal courts
do exercise jurisdiction over many
constitutional claims which attack the
state's power to license attorney
involving either the rule making
authority or ;the administration of
rules, .. . such is not true where
review of a state court's adjudication of
a particular applicant is sought. The
Court ruled that the latter claim may be
heard, if at all, exclusively by the
Supreme Court of the United States."

460 U.S. at 485 (quoting Doe v. Pringle, 550

Ree seeennneeneial

F.2d 596,579 [10th Cir. 1976]).242© ‘he
Feldman Court concluded:

Challenges to the constitutionality of
sstate bar rules, therefore, do not
necessarily require a United States
district court to review a final state-
court judgment in a judicial proceeding.
Instead, the district court may simply be
asked to assess the validity of a rule
promulgated in an on judicial proceeding.
If this is the case, the district court
is not reviewing a state-court judicial
decision. In this regard, 28 U.S.C. §
1257 does not act as a bar to the
district court's consideration of the
case and because the proceedings giving
rise to the rule are nonjudicial the
policies prohibiting United States
district court review of final state-
court judgments are not implicated.
United States district courts, therefore,
have subject matter jurisdiction over
general challenges to state bar rules,
promulgated in nonjudicial proceedings,
which do not require review of a final
state court judgment in a particular
case. They do not have jurisdiction,
however, over challenges to state court
decisions in particular cases arising out
of judicial proceedings even if those
challenges allege that the state court's
action as unconstitutional. Review of
those decisions may be had only in this
court. 28 U.S. C. Sec. 11257.

1416 noe was a challenge to a decision by
the Colorado Supreme Court which denied the
plaintiff therein admission to the bar because
he was a convicted felon.

460 U.S. at 486. With respect to the latter
Class of claims, those over which a federal
court does not have jurisdiction, the Supreme
Court explained that a United States district
court may not hear a constitutional challenge
to a state court's decision in a bar admission
matter when the constitutional challenge is
“inextricably intertwined" with state court's
decision to deny a particular bar applicant
admission to the bar because such a challenge
effectively asks the district court to review
the state court's decision. Id. at 482 n. 16.
In short, one cannot reach and decide the
constitutional issue without, at the same
time, dealing with the decision to deny
admission to a particular applicant to the
state Bar.

In applying the foregoing pronouncement,
the Feldman Court concluded that the district
court did not have jurisdiction over the
Plaintiffs' claims that the District of
Columbia Court of Appeals acted arbitrarily,

Capriciously, unreasonably and

discriminatorily in not granting them waivers
to its rule in their individual application.
Id. The Supreme Court determined that the
claims that the District of Columbia Court of
Appeals acted arbitrarily, capriciously,
unreasonably and discriminatorily
inextricably intertwined with the d d
decisions by the District of Columbia Court of
Appeals denying the Plaintiffs' requested
waivers. Id. at 486-87. However, the Supreme
Court concluded that the district court did
have jurisdiction over the Plaintiffs' claims
that the rule was unconstitutional on their
theories that it created an irrebuttable
presumption that only graduates of accredited
law schools are fit to practice law, that it
discriminated against those who have obtained
equivalent legal training and that it
impermissibly delegated to the ABA the
authority of the District of Columbia Court of
Appeals to regulate the bar. Id. at 487.
District courts in the Sixth Circuit have

applauded Feldman to challenges to the subject

matter jurisdiction of a court hearing
litigation contesting the denial of a
particular applicant's admission to the bar.

For instance, Stanfield v. Horn, 704 F.Supp.

1487 (M.D.Tenn. 1989), affirmed, 884 F.2d 580

(6th Cir. 1989) (table), as does the present
case, involved a suit in federal court any a

disappointed applicant to bar. The Stanfield

Plaintiff claimed that by being refused
admission to the practice of law based upon
the grades she received on the Tennessee bar
examination, she was denied due process and
equal protection of the laws. In particular,
the Plaintiff challenged the Tennessee rule
which provided that a disappointed applicant's
sole remedy was to retake the bar examination.
The upshot of the Tennessee rule was that the
grades given by the Tennessee Board of Law
Examiners on the bar examination were final
with no right to have the scores reviewed by
the Tennessee Supreme Court. The rules also

provided that the Board would not discuss with

the disappointed applicant his or her

responses to the questions on the bar
examination. The district court concluded
that it did not have subject matter
jurisdiction over the Plaintiff's claims,
because the Plaintiff's primary contention was
that her examination had been improperly
graded and that, as a consequence, she had
been wrongly denied admission to the Tennessee
bar.

In Ronald Smith, et al. v. Frank

Celebrezze, et al., Case No. 90-CV-1874

(N.D.Ohio October 18, 1992) (unreported) , 1°27
Judge Bell dismissed, for want of subject
matter jurisdiction, a lawsuit brought by
individuals who had failed the Ohio bar
examination on at least two occasions. The
Smith Plaintiffs alleged that they were denied
their constitutional rights because there is
no appeal process from the grades that
applicants receive on their bar examinations

and because bar exam repeaters are treated

1517, copy of Smith is attached to
Defendants' motion dismiss (Doc. ®38).

differently than first time takers of the
exam. Judge Bell reasoned that the
Plaintiffs' claims were inextricably
intertwined with the Ohio Supreme Court's
judicial determination denying them admission

to the bar.

Initially, this Court must decide whether
Feldman applies to the present case. In
particular, this Court must decide whether the
decisions to deny Plaintiffs admission to the
bar based upon their grades on the bar
examination were judicial decisions made in
judicial proceedings. In Ohio, the scores
awarded to a bar examinee by the Board are
final, and there is no appeal to the Ohio
Supreme Court. Gov. Bar R. I, § 5(D). Thus,
the Board and not the Ohio Supreme Court
awarded the scores of which the Plaintiffs

1618

complain. Nonetheless, the Court

concludes that the Board acted in judicial

16185¢ course, the Ohio Supreme Court had
initially established the score which each
applicant must attain in order to pass the bar
examination.

proceedings, within the meaning of Feldman,
when it awarded the scores to Plaintiffs. To
reach this conclusion, the Court engages in a
two-step analysis. Initially, the Court must
examine the question of whether the actions of
bar admission committees appointed by state
supreme courts, such as the Board herein, are
considered judicial proceedings. Second, if
the answer to the first question is “yes," the
Court must consider whether the Plaintiffs’
inability to appeal the grade awarded by the
Board causes the Court to conclude that the q
Board did not act judicially when it assigned |
scores to the Plaintiffs.

All courts which have considered the
first question have concluded that an entity,
such as the Board herein, incontestably an arm
of a state supreme court, acts judicially when
it acts on behalf of the state supreme court
in addressing bar admission questions. For

instance, in Nordgren v. Hafter, 789 F.2d 334

(Sth Cir.), cert. denied 479 U.S. 850 (1986),

the Fifth Circuit held that the Mississippi

Board of Bar Admissions was an arm of the
Mississippi Supreme Court, and that,
therefore, it was acting judicially, within
the meaning of Feldman, when it declined to
waive the rule that applicants for the
Mississippi bar graduate from ABA accredited

law schools. See also Thomas v. Kadish, 748

F.2d 276 (5th Cir. 1984), cert. denied, 473

U.S. 907 (1985) (Texas bar admissions
committee acted in a judicial proceeding when
it denied admission to an applicant on the
basis of emotional and mental fitness.);

Stanfield, supra.

As is noted above, the Plaintiffs did not
have the right to appeal the grades which they
received on their bar examinations to the Ohio
Supreme Court. Therefore, the Court must next
decide if the absence of such a right to
appeal indicates that the decision of the
Board was not made in a judicial proceeding.

In Stanfield, the district court concluded

that the absence of a right to appeal to the

Tennessee Supreme Court did not mean that the

Tennessee Board of Law Examiners did not act
judicially when it administered the bar
examination and assigned a score to a
particular examinee's answers to the questions

on the bar examination. The Stanfield court

reasoned that the Tennessee Board of Law
Examiners was acting on behalf the Tennessee
Supreme Court when it administered the bar
exam and assigned scores. Similarly, the Ohio
Board of Bar Examiners acts on behalf of the
Ohio Supreme Court when it administers the bar
examination and assigns scores, pursuant to
the delegation of authcrity from the Ohio
Supreme Court.1719 Moreover, the assignment
of grades to the Plaintiffs was a judicial as
opposed to a legislative act in that such
grades were based upon the Plaintiffs; answers

to the questions on the examination, a _ 1ook

1719 the Ohio Supreme Court has criginal
jurisdiction over the admission to the
practice of law. Ohio Constitution, Art. IV,
§ 2(B)(1)(g). See also, In re February, 1986
Ohio Bar Examination Applicant No. 83, 60 Ohio
St.3d 602, 573 N.E.2d 37 (1991); In re July,
1986 ohio bar Examination Applicant No. 719,
61 Ohio St. 3d 307, 574 N.E. 1047 (1991).

backward to existing facts, rather than the
creation of new rules that would govern this
or future bar examinations. Accordingly, as

with the district court in Stanfield, a case

which is indistinguishable from the present
litigation, this Court finds that the Board,
when it assigned scores to the Plaintiffs,
acted in a judicial proceeding within the

meaning of Feldman.

Nevertheless, Plaintiffs argue that
Feldman does not apply, since they did not
have a reasonable opportunity to raise their
constitutional claims because they could not
appeal their grades to the Ohio Supreme Court.
Federal courts have held that Feldman applies
only hen "the Plaintiff [in the federal
action] had a reasonable opportunity to raise
his federal claim in the state proceedings."

Wood v. Orange County, 715 F.2d 1543, 1547

(llth Cir. 1983), cert. denied, 467 U.S. 1210

(1984). See also, Texaco, Inc. v. Penzoil

Co., 784 F.2d 1133, 1144-45 (2d Cir. 1986),

reversed on other grounds, 481 U.S. 1 (1987);

Robinson v. Avrivoshi, 753 F.2d 1468 (9th Cir.

1985), vacated on other grounds, 477 U.S. 902

(1986). Here, the Plaintiffs argue that the
evidence demonstrates that they did not have
such an opportunity. For instance, as is
stated above, the rules of the Ohio Supreme
Court provide that "({t]he scores as determined
by the Board shall be final." Ohio Gov. Bar
R. I § 5(D). Additionally, Graham has
submitted an affidavit in which he states
that, after he received his results on the bar
examination, he contacted Defendant Marcia J.
Mengel, secretary of the Board, and was told
that the Ohio Supreme Court would not review
his examination. Mengel told Graham that an
attempt to submit an application to have the
Ohio Supreme Court review his examination
would be a futile act.

In addressing this contention of the
Plaintiffs, the Court's analysis is effected
by three considerations. First, This Court
must focus on the question of whether the

Plaintiffs had an opportunity to raise their

federal claims and not whether those claims

were actually addressed. See Feldman, 460

U.S. at 482 n.16 ( rejecting Dasher v. Supreme

Court, 658 F. 2d 1045 [Sth Cir. 1981]); Wood,
714 F.2d at 1546-47. The Dasher Court said if
a litigant does not raise a federal claim in a
State proceeding, federal courts may address
that claim. The Feldman Court rejected that
holding in the context of challenges to bar
examination results, upon the theory that the
constitutional claims are so inextricably
intertwined with the state court's denial of a
particular plaintiff's application for
admission to the bar, as to put the United
States district court in a position of
reviewing the state court's judicial decision

made in a judicial proceeding. 1820 Second,

20The Feldman Court said: If the
costitutional claims presented to the United
States district court are inextricably
intertwined with the state court's denial ina
judicial proceeding of a particular
plaintiff's application for admission to the
state bar, then the district court is in
essence being called upon to review the state-
court decision 460 U.S. at 482 n.16.

one must bear in mind the nature of the
proceedings before the District of Columbia
Court of Appeals in Feldman. The District of
Columbia Court of Appeals merely entered per
curiam orders denying the requested waivers of
Feldman and Hickey. The Feldman Court
recognized that those proceedings “did not
assume the form commonly associated with
judicial proceeding." Nevertheless, the
Feldman Court concluded that denial of waivers
were judicial proceedings. Therefore, the
Plaintiffs at bar need not have the

opportunity to formally litigate their federal

claims. Third, the question presently before
the Court is its subject matter jurisdiction,
the burden of proof of which rests upon the
Plaintiffs. With these considerations in
mind, the Court turns to the precise question
of whether the Plaintiffs have demonstrated
that they did not have the opportunity to
raise their federal claims in the state
proceedings. The Court agrees with the

Plaintiffs that they did not have the

Opportunity to have the Ohio Supreme Court
regrade their examinations. However, this
fact does not answer the germane inquiry, to
wit: did the Plaintiffs have the opportunity
to raise their federal claims with the Ohio
Supreme Court or with the Board. There is
simply no indication before the Court that
Plaintiffs could not have presented their
substantive due process claim to the Ohio
Supreme Court. The evidence demonstrates that
the Ohio Supreme Court would not regrade the
Plaintiffs' examination papers; however, there
is simply no indication that the Ohio Supreme
Court would not have considered a
constitutional challenge to the bar

examination. Cf. In re February, 1986 Ohio

Bar Examination Applicant No. 83, 60 Ohio

St.3d 602, 573 N.E.2d 37 (1991) (Under its
constitutional authority to govern admission

to the bar, Ohio Supreme Court sua sponte

raises the question of whether an applicant
actually passed the bar examination more than

five years earlier.); In re July, 1986 Ohio

Bar Examination Applicant No. 719, 61 Ohio

St.3d 307, 574 N.E.2d 1047 (1991).
Accordingly, this Court concludes that they

did have an opportunity to raise their federal

claims in the state proceedings.

Having concluded that the Board assigned
the Plaintiffs their scores on the July, 1990,
bar examination in a judicial proceeding and
that, consequently, Feldman does apply, the
Court turns to the question of whether the
Plaintiffs' claims are of the type which the
Feldman Court held that a district court has
subject matter jurisdiction to hear. Here,
the Plaintiffs contend that the manner in
which their bar examinations were graded was
arbitrary and capricious, in violation of
their right to substantive due process.
Although they point to no particular rule of
the Ohio Supreme Court which they assert
deprives them of any constitutional rights,
Plaintiffs contend that they are mounting a
constitutional challenge to a broad rule of

that court. Plaintiffs contend that the

Supreme Court has a rule which allows
examination papers to be graded in the absence
of standards governing their grading. The
heart of the Plaintiffs' claims is that
Jacobs' grading was unfair; indeed, so unfair
that it was a deprivation of substantive due
process. It is simply not possible for the
Court to rule on Plaintiffs' claims or to
grant them the primary relief sought, an order
admitting them to the Ohio Bar, without
considering the grades which they were given.
Therefore, assuming for the sake of argument
that the absence of such standards is a rule
of the Ohio Supreme Court, that challenge is
inextricably intertwined with the decision of
the Board on what grades the Plaintiffs should
receive on their respective examinations and
whether they should have been admitted to the
Ohio Bar. Accordingly, regardless of whether
the Plaintiffs allege that they were denied
their constitutional right to substantive due
process, Feldman mandates that this court

refrain from hearing this case.

Based upon the foregoing, the Court
concludes that it does not have subject matter
jurisdiction over Plaintiffs' claims, and
therefore, it sustains Defendants' motion to
dismiss for want of subject matter
jurisdiction. (Doc. #38).

Finally, because it has concluded that it
does not have subject matter jurisdiction over
this case, the Court does not make a ruling on
the merits of Plaintiffs’ claims. However,
the Court does make a number of observations
about these claims. The parties herein agree
that the proper analytical framework for
Plaintiffs' substantive due process claim is

that which was set forth in Regents of the

University of Michigan v. Ewing, 474 U.S. 213

(1985). See Docs. #31, at 1; #32, at 9.
Ewing was a law suit brought by a student who
was dismissed from the University of Michigan

("University") after failing an

examination. 1921

Ewing argued that the
University misjudged his fitness to remain a
student. The Supreme Court held that
substantive due process could not be violated
unless there was “such a substantial departure
from accepted academic norms as to demonstrate
that the person or committee responsible did
not actually exercise professional judgment."
Id. at 225. Only when there is such a
substantial departure is a court permitted to
conclude that the decision was not related to
the student's fitness to remain a student (or,

in this case, an applicant's fitness to

practice law). Id.

Here, the Court has found that Jacobs
exercised professional judgment in method by

which he graded the examinations. However,

192lamong Other relief, Ewing sought an
order from the district court directing the
University to grant him the opportunity to
retake the examination, the failure of which
led to his dismissal. Thus, there is an
important difference between Ewing and the
present case. Here, the Plaintiffs have the
right to retake the Ohio bar examination.
Indeed, Deffet and Carey have retaken and have
passed the Ohio bar examination.

Plaintiffs' claims are broader than merely an
attack on the manner in which Jacobs graded
his portion of the bar examination. Rather,
Plaintiffs challenge (and blame the Supreme
Court Defendants for) the lack of grading
standards and uniformity among the examiners.
See Doc.#32. Thus, were this Court to reach
the merits, it would be called upon to
determine whether the July, 1990, bar
examination, taken as a whole, was such a
substantial departure from accepted norms that
it demonstrates that professional judgment was
not exercised and, consequently, that the
examination was not related to the Plaintiffs'

fitness to practice law.

III. CONCLUSIONS OF LAW

1. Pursuant to the Feldman doctrine, this
Court does not have subject matter
jurisdiction over this dispute.

Based upon all the foregoing, the Court

orders that judgment be entered for the

Defendants and against the Plaintiffs

dismissing Plaintiffs' second amended
complaint (Doc. # 24) for want of subject

matter jurisdiction.

The captioned cause is hereby ordered
terminated upon the docket records of the
United States District Court for the Southern
District of Ohio, Western Division, at Dayton.

WALTER HERBERT RICE

UNITED STATES DISTRICT JUDGE

APPENDIX F

SECTION 1257:

(a) Final judgments or decrees rendered
by the highest court of a State in which a
decision could be had, may be reviewed by The
Supreme Court by writ of certiorari where the
validity of a treaty or statute of the United
States is drawn in question or where the
validity of a statute of any State is drawn in
question on the ground of its being repugnant
to the Constitution, treaties or laws of the
United States, or where any title, right,
privilege, or immunity is specially set up or
Claimed under the Constitution or the treaties
or statutes of, or any commission held or
authority exercised under, the United States.

(b) For the purposes of this section, the
term “highest court of a State” includes the
District of Columbia Court of Appeals.

. haggle
: RAE RC 3
3 a OS

APPENDIX G

The Fourteenth Amendment in pertinent part

Section l.

-»-nor shall any State deprive any person
of life, liberty or property, without due
process of law....

APPENDIX H

Title 28 U.S.C. a
§ 1331 Federal Question

The district courts shall have original
jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of
the United States.

§ 1343 Civil Rights and Elective Franchise

(a) The district courts shall have
Original jurisdiction of any civil action
authorized by law to be commenced by any
person:

(1) To recover damages for injury to his
person or property, or because of the
deprivation of any right or privilege of
citizen of the united State, by any act done
in furtherance of any conspiracy mentioned in
section 1985 of Title 42;

(2) To recover damages from any person
who fails to prevent or aid in preventing any
wrongs mentioned in section 1985 of Title 42
which he had knowledge were about to occur and
power to prevent;

(3) To redress the deprivation, under
color of any state law, statute, ordinance,
regulation, custom or usage, of any right,
privilege or immunity secured by the
Constitution of the United States or by any
Act of Congress providing for equal rights of
citizens or of all persons within the
jurisdiction of the United States;

(4) To recover damages or to secure
equitable or other relief under any other Act
of Congress providing for the protection of
Civil rights, including the right to vote....

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APPENDIX I

O Const IV § 2 Organization and jurisdiction
of supreme court

(B)(1) The Supreme Court shall have
jurisdiction in the following:

(g)Admission to the practice of law, the
discipline of persons so admitted, and all
other matters relating to the practice of law.

(Zbecece
(iii) Cases invloving questions arising under

the consitution of the United States or of
this state.

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1993
No.

R. William Graham PETITIONER
Vv.

Marcia Mengel et al., RESPONDENTS

PROOF OF SERVICE

I, R. William Graham, do declare that on this
OCTOBER 12, 1993, pursuant to Supreme Court
Rule 29.3, I have served the attached Petition
For A Writ of Certiorari on said party's
counsel, David C. Greer, Counsel for
Respondents, at 400 Gem Plaza, Third & Main
Streets, Dayton, 45402 by depositing an
envelope containing three copies of the above
documents in the United States mail properly
addressed to said coursel and with first class
postage prepaid.

A
/

(Dit Yrdhv

R. William Graham

Subscribed and sworn to before
me this October 12, 1993

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0591%3A1. Public record. Not legal advice.